Tackling Covid-19 obstacles in IC proceedings in conversation Advocate Adit Subramaniam Pujari

Advocate Adit Subramaniam Pujari is a litigator practicing in Delhi with over 10 years of experience. Previously, an advocate at the chamber of Mr. Kapil Sibal, Mr. Pujari now has his own practice revolving around a wide range of legal areas in criminal and civil law. This interview took place at the beginning of the lockdown when various ongoing Internal Committees (“IC”) cases were suddenly halted. Since Universities and Colleges were shut down, most IC’s have opted to continue any ongoing or new cases on virtual platforms such as zoom, google meet etc. This has led to a plethora of concerns and doubts on how to navigate virtual proceedings. We delve into whether the 3 month limitation within which a complaint must be filed according to the law, is applicable, as the unprecedented lockdown may have led to circumstances that prevented the survivor from filing a complaint. Another important issue is the availability and accessibility of required evidence to prove the case and what steps can be taken by the survivor. Mr. Pujari addresses these ambiguities and highlights the need for IC’s to be proactive regarding such evidence collection. Other general issues that arise in virtual proceedings are also discussed. Additionally, in light of increased virtual harassment due to online classes, activities and other interactions, the IC’s jurisdiction to hear cases of online harassment and filing of complaint are also addressed.

Q. Prior to the pandemic and lockdown, there were several Internal Committee (“IC”) proceedings that were still going on. However, a lot of them had to be adjourned. One reason could the lack of resources of the University to undergo online proceedings. Is this legally permissible for government colleges?

An IC mainly deals with two types of complaints. One where the complaint is filed by a student against another student. Second, where the complaint is filed against the university or college staff or faculty like a professor. If the complaint is filed in a government college, then proceedings are guided by Central Civil Services Conduct Rules, 1964. This also deals with harassment complaints against government employees. During the lockdown it is acknowledged that government offices are not functioning at full capacity. This means that they do not have enough support staff to ensure that the proceedings take place efficiently. These factors hold significance while considering the question of adjournment. Therefore, in most of the administrative inquiries, that take place during the pandemic, when adjournment is requested due to the inability to be physically present during the proceedings, it is usually allowed. Furthermore, the limitation period of 3 months to before which one must file a complaint before the IC, mentioned under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (‘PoSH Act’), is seen as directory and not mandatory in nature.

Q. If the limitation period is directory, then in the case of an instance of sexual harassment that too place before the lockdown, can the complainant report it or take it up with the IC after the lockdown, once college has resumed?

While the pandemic can be seen as a justification for the delay in proceedings or for a delayed complaint, it is still considered ideal to at least send an e-mail addressing the situation. It is advisable that the complainant state that he/she/they are willing to continue with the proceedings once it is possible to ensure physical presence of all parties involved. Since most people have access to e-mail accounts it is reasonable to expect that an e-mail is sent to the IC which explains the need to give the complainant more time by postponing the proceedings. This would allow the ICto secure any required evidence during that period.

Q. Besides lack of resources of the college administrative to conduct online proceedings, can the Limitation Act play a role in understanding until when a survivor can file a complaint, considering that the Supreme Court order extends all limitation requirements? (In Supreme Court Order dated March 23, 2020, it was held that the period of limitation in all proceedings before any Court or any Tribunal [whether under the general law or Special Laws] shall stand extended from March 15, 2020, till further orders are passed.)

The Supreme Court Order in question addresses specific bodies and specific situations in which it can be applied. The order mentions that it is applicable to Tribunals and since the IC is essentially an administrative tribunal per se., Therefore, the extension of limitation requirements would be applicable to IC as well.

Q. Can an adjournment affect the complainant’s case? What should the IC do to balance such a situation?

The grounds presented by the complainant will inevitably suggest or indicate the urgency of the matter. Therefore, it is advisable initiate the proceedings immediately, considering that the sooner the complainant files the complaint, the better the chances are of him/her/them remembering relevant and crucial information, or even gathering evidence like CCTV footage (which happen to be overwritten and erased after a certain period of time). If at the end of the IC proceedings, criminal proceedings are initiated then the police would also ask for such footage or information and hence gathering the evidence at the earliest is of utmost importance. Even if it is difficult for the IC to convene and continue proceedings then it should also take steps to secure and preserve evidence.

Q. During the pandemic if a proceeding involves procurement of any external evidence such as CCTV footage, and the same is inaccessible, then can the IC issue orders allowing for adjournment? Alternatively if the case does not involve evidence that needs to be externally procured, but instead consists of witness statements and other available evidence that is inaccessible, then can an adjournment be sought?

If external evidence is inaccessible then seeking adjournment may be granted. However, the individual seeking adjournment must indicate in detail as to why they can’t access such evidence.

If the complainant says that he/she/they cannot procure evidence as then the order can be used as a defense and adjournment can be allowed. However, if the accused says that this adjournment or delay is merely being used to ensure that certain evidence, crucial to his/her/their case, is unavailable at a later date, then there should at least be an e-mail addressing the need for such delay from the complainant. The IC can weigh the reasons and urgency of both cases and accordingly decide.

Q. What are other hurdles of a virtual IC proceeding? Can such grounds be used to seek an adjournment?

For example, Evidence Act also permits the person, before whom cross- examination is taking place, to note down demeanor of the individual being cross-questioned. This would be difficult to note during an online proceeding. Furthermore, the proceedings could also be vulnerable to external stimuli. For example, if the witness is being asked a tough question, then he/she/they can simply log out, regain composure and come back to the proceedings after having come up with an answer that serves their own purpose. Even problems with electricity could disrupt proceedings. It is better and more efficacious to have witness evidence taken when physical meetings/proceedings are possible and examination can take place in a secure location, free from external disturbances. Party seeking adjournment should make out a case as to why adjournment is being sought.

Q. In cases of inaccessibility of evidence, should the IC exercise due diligence in ensuring that it can procure/secure and protect as much evidence as it can?

It definitely should. The lockdown was imposed in March. The complainant can use this time to talk and discuss the course of action with regard to filing a complaint as and when they feel comfortable addressing the issue. It is advisable to at least file a complaint with regard to incidents that took place before lockdown or cases of online harassment, should a survivor decide to initiate IC proceedings at all.

Q. If IC feels that the parties are unable to make their case due to inaccessibility of evidence, then can it pass an interim order to protect complainant until next proceeding is held?

An interim order can be passed for three different purposes. First, an order can be passed to keep the complainant separate from the harasser, for all interactions subsequent to the complaint. Second, the complainant should not be in any position administratively inferior to the harasser. Third, the complainant and harasser should never be placed in same zone to interact. These orders are passed in routine cases as well. For example, in university, if the complainant doesn’t want harasser to contact her/him/them on social media the complainant can block the harasser. However, in case of zoom call or class, the interaction becomes inevitable. The harasser might contact the complainant through private messages. In such cases, the IC can issue an order to ensure they aren’t in the same class. So, it is definitely possible for the IC to pass an interim order to protect the complainant.

Q. Does virtual harassment fall under purview of IC and is the complainant required to file a complaint within the 3-month limitation period prescribed?

If the interaction takes place in the virtual space that falls under the larger ambit of the University jurisdiction or if the harasser and the survivor have come into contact with each other because of the university then virtual harassment, in such cases, fall under the purview of the IC. Even if conversation between both parties does not pertain to any college work, but both the individuals are related to or students of the university then it falls under the under the purview of IC. However, if the harasser isn’t associated with the university then the IC does not have jurisdiction. Even in virtual harassment, if both the complainant and the respondent are associated with university then the IC would definitely have jurisdiction over the matter. But there has to be some link between the harasser and complainant with university directly or the interaction has to happen on account of the university. The link can be drawn because the introduction has happened because of the university.

Q. There is likelihood that harassment online might increase considering that classes now take place on an online platform. Would these classrooms, email correspondence or even WhatsApp messages fall under the purview of the IC?

In cases of online interaction, it is possible that evidence is preserved by way of screenshots or even emailed chats and other such evidence to the IC. The IC can definitely take such evidence into account. However, it is not advisable to hold on to complaint because of the pandemic. It is advisable that once the survivor has taken the requisite time to heal and address the issue at their own pace, then the they should consider consulting people they are comfortable talking to and filing the complaint as soon as possible.